October 17 Commission Session #6: Remarks by the Chief Prosecutor

Yesterday and today, the military commission convened to try the charges against Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi held pre-trial sessions to consider issues raised by the defense and the prosecution. Before turning to these proceedings, I would like to note the decision yesterday by the U.S. Court of Appeals for the District of Columbia Circuit.  Under the Military Commissions Act of 2009, commission defendants have the right of direct appeal to this federal civilian court.  In a unanimous decision, the Court of Appeals directed that the conviction in 2008 of Salim Ahmed Hamdan on charges of providing material support for terrorism be vacated.  I am studying the ruling, and those of us across the government with professional duties relating to military commissions are determining the effects of this decision on our work.  My initial reaction is, as it must be, that we are a government of the rule of law and that our courts interpret and decide the law.  I cannot provide at this point the decision’s impact upon ongoing or possible future prosecutions.  I can note that material support for terrorism is not a charge in the case against Khalid Shaikh Mohammad and his four co-accused. I will briefly list these motions and matters, as they were heard yesterday and today, along with any results decided by the Commission. First, a joint defense motion regarding the accused’s courtroom attire (Appellate Exhibit 38).  The Commission ruled that the accused may not wear clothing that “connotes a detention status that is not the status he is in,” reasonably presents a security risk, or includes any U.S. military clothing, though the Commission did not rule out attire with camouflage patterns or other military-like items. Second, Mr. al Baluchi’s motion, joined by the other accused, challenging the presumptive classification process used to protect properly classified information from disclosure (Appellate Exhibit 9).  After hearing from the parties, the Commission declined to rule on the motion in view of its connection to other motions. Third, the government’s motion for an order to protect against disclosure of national security information (Appellate Exhibit 13).  In addition to hearing extensive argument from the parties, the Commission received argument from separate counsel for news media organizations and the American Civil Liberties Union upon their request to appear, a request the government supported.  The Commission took this motion under advisement.